Due diligence and transfer of ownership

Pho Sotheaphal, a 34-year-old bar-registered attorney-at-law who spoke to the Post last week about immovable property and some of the confusion surrounding hard and soft titles, speaks this week about the transfer process.

Because a soft title to an immovable property is not fully recognised under the law, the transfer is normally undertaken via certification – generally a letter validating transfer of rights by the local authorities, which could be at the village or commune level, or as a high as the district level. Generally, Sotheaphal says, the process for transfers is simple, fast, and inexpensive – largely due to the lack of a mechanism to collect taxes on soft-title transfers.

But, he adds, the party “receiving the transfer assumes all risks and outstanding obligations associated with the ambiguity of the soft title”.

In the case of hard titles, on the other hand, parties can draw up a contract containing detailed terms and conditions and their respective rights and obligations, including a schedule for payments for the immovable property according to the stages of the transfer process.

“This contract is only a private agreement between the parties, and it cannot be used to process the transfer of title,” Sotheaphal says.

Processing the conveyance, he says, involves the parties completing an authentic deed required and executed by the cadastral administration (which oversees the extent and ownership of land for tax purposes). Supporting documents include Khmer identity cards or identity verification letters acceptable to the cadastral authority. In the case of either party being a legal entity, the shareholders must also provide a power-of-attorney authorising a physical person to act on its behalf – authorisation for which may require certification by an attorney-at-law and/or the commune authority.

Upon completion of the procedure at the cadastral office, the law requires payment of a stamp tax for the immovable property conveyance,” says Sotheaphal, who adds the current rate is four per cent of the immovable property value as assessed by the taxation authorities.

The cadastral authority will only conclude all legal and official procedures, formally registering the transfer on and the title deed, after the tax has been paid, Sotheaphal adds.